Systemic infringement action: mind the particulars – and go for the big picture

Infringement action against Member States that violate the fundamental values of the EU (Article 2 TEU): that was the course of action I suggested in response to Jan Werner Müller’s recent proposal to establish the “Copenhagen Commission”, which would investigate such violations. Kim Lane Scheppelle takes the idea of employing infringement action much further, suggesting that the Commission should group together related complaints against one Member State thematically under Article 2 TEU. This, according to Scheppelle, “would add the argument that the whole is more than the sum of the parts”, rising “to the level of a systemic breach of basic values”.

While I agree with Scheppelle’s proposal, I am not so sure that it can be accomplished under the existing legal authority (notwithstanding the proposal’s part concerning the temporal withholding of funds, where Scheppelle admits that it would require additional secondary legislation). Or better put, the prevailing understanding of what EU Treaties allow the Commission to do requires a much deeper transformation of the Commission’s role than Scheppelle suggests.

At present, infringement actions by the Commission concern violations of rules contained in concrete policy areas, defined in the Treaty on the Functioning of the EU. One can see this clearly in the Commission’s regular annual reports on national implementation of EU law. There is no EU policy on democracy or freedom, the primary concerns in Hungary or Romania ...

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